Delhi District Court
State vs . Vikram @ Monti & Ors. on 4 June, 2022
IN THE COURT OF SH. GAURAV SHARMA
METROPOLITAN MAGISTRATE-05,
CENTRAL, TIS HAZARI COURTS, DELHI
CIS No. 1253/20
State Vs. Vikram @ Monti & Ors.
FIR No. 405/19
PS : Nabi Karim
U/s. 392/411/34 IPC
1) The date of commission of offence : 10.12.2019
2) The name of the complainant : Mr. Praveen Kumar
3) The name & parentage of accused : 1.Vikram @ Monti
S/o Subhash
2. Mukesh Kumar
S/o Rattan Lal
4) Offence complained of : u/s 392/411/34
:
IPC
5) The plea of accused : Pleaded :
Not guilty
6) Final order : Acquitted :
Date of Institution : 10.02.2020
Judgment reserved on : 01.06.2022
Judgment announced on : 04.06.2022
Digitally signed
GAURAV by GAURAV
SHARMA
SHARMA Date: 2022.06.04
12:30:38 +05'30'
FIR No. 405/19 State v Vikram @ Monti & Ors. PS Nabi Karim Page 1 of 13
JUDGEMENT
04.06.2022
1. Both the accused are hereby Acquitted of all the charges levelled against them.
2. The present case almost amounts to some ghoulish epicaricacy as it were, for the accused persons being charged with the offences as alleged, in support of which nothing credible could ever come on record. The prosecution must abjure such a practise and is well advised to be careful in prosecuting such cases as liberty of individuals, the most sacred of virtues is at stake in a criminal trial. Even if the case ends up in an Acquittal, reparations for the agony that the accused would have undergone, is impossible to account for.
Facts
3. Pithily put, the case of the prosecution against the accused persons, Vikram @ Monty and Mukesh, is that on 10.12.2019 at about 04:00 PM, at Shop No. 8063, Lane No. 8, Multani Dhanda, Pahar Ganj, Delhi, within the jurisdiction of PS Nabi Karim, accused persons, acting in concert, robbed the complainant of his mobile phone, which was ultimately recovered from the person of accused Vikram @ Monti. On the said allegations, accused persons were charged with the offences under Section 392/411/34 IPC.
Digitally signedGAURAV by GAURAV SHARMA SHARMA Date: 2022.06.04 12:31:00 +05'30' FIR No. 405/19 State v Vikram @ Monti & Ors. PS Nabi Karim Page 2 of 13
4. After investigation, charge-sheet was filed. The copy of charge-sheet was supplied to both the accused in compliance of Section 207 Cr.P.C. Thereafter, charge was framed against the accused persons under Section 392/411/34 IPC, to which they pleaded not guilty and claimed trial.
5. In support of its version, prosecution five witnesses. Accused persons admitted as per section 294 Cr.P.C, the factum of registration of present FIR, contents of TIP report and that of register no. 19, being Ex. A-1 and A-2 respectively. In view of the said admission, prosecution witnesses cited at serial no. 5, 6 and 7, all formal in nature, were dropped.
6. After conclusion of prosecution evidence, statement of accused persons were recorded u/s 281/313 Cr.P.C separately wherein they claimed to be innocent and denied the allegations against them. Accused persons opted not to lead any DE.
7. I have heard Ld. APP for State, Ld. Counsel and accused persons themselves as well. I have also perused the record carefully.
Findings
8. Before proceeding further, it shall be in fitness of things to briefly note the provisions of law with which are concerned herewith, as have been charged against the accused persons. Robbery, simply put, is an aggravated form of theft. For transformation of an offence of theft to one under robbery, defined u/s 390 IPC and made punishable u/s 392 IPC, the offender for the end of committing theft, or carrying away or attempting Digitally signed GAURAV by GAURAV SHARMA SHARMA Date: 2022.06.04 12:31:21 +05'30' FIR No. 405/19 State v Vikram @ Monti & Ors. PS Nabi Karim Page 3 of 13 to carry away the looted property, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint or fear of instant death or of instant hurt or of instant wrongful restraint. It is to be noted in this regard that the use of violence will not, ipso facto convert the offence of theft into robbery unless the violence is committed for one of the ends specified in the provision. With regards establishing a case u/s 411 IPC, it has been laid down by the superior courts from time to time that it is the duty of the prosecution in order to bring home the guilt of a person to prove (1) that the stolen property was in the possession of the accused, (2) that some person other than the accused had possession of the property before the accused got possession of it, and (3) that the accused had knowledge that the property was stolen property. Thus, these three elements have to be kept in mind while examining the conviction of an accused for offence under S. 411 IPC.
9. Having noted the position of law as aforesaid, we now move to the case at hand. On a careful scrutiny of the evidence adduced on record, it is seen that the complainant himself has, on material aspects, backtracked on his version. For as grave an offence as that of robbery, absolutely no evidence worth its weight has come on record, to hold the accused persons guilty. As regards co accused Mukesh in fact, there's been not even a whimper, other than customary mention of his name in the most casual manner. During the deposition of the complainant, it was observed that with regards key aspects of the case, he did not support the State version. In his examination-in-chief, he stated that the accused Vikram @ Monti used to on and off demand money from him. There's been no Digitally signed GAURAV by GAURAV SHARMA SHARMA 2022.06.04 Date:
12:31:41 +05'30' FIR No. 405/19 State v Vikram @ Monti & Ors. PS Nabi Karim Page 4 of 13 explanation or information given as to the surrounding circumstances it must be noted, qua such behaviour of the accused. The complainant version therefore starts off itself with a rather vague claim. On the day of incident in question as well, the witness stated that at about 04:00 PM, accused Vikram @ Monti, alongwith one another person came to his shop and made a similar demand, which was refused by him. Upon such refusal, it is claimed that the accused Vikram @ Monti took away his mobile phone without consent and when he did not return back for some hours, police was informed. The complainant did not say anything at all as to the mobile being robbed off from him. It's simply stated that the mobile was taken away. No role of the co accused is also stated by the complainant. For such an incident therefore, seemingly rather straightforward and at best, of simple theft, invoking provisions of robbery seem totally outlandish, if not absurd. The prosecution case at the outset therefore starts on a weak wicket. Thereupon, as per the witness, when the police came, it took the witness as well as the accused Vikram @ Monti with it to the Police Station. The accused was enquired about the phone as per the witness and subsequently, the mobile phone was brought by him. The witness identified the accused Vikram @ Monti correctly. Having deposed as such, the witness then appeared to resile from his previous version and the Ld. APP sought permission to cross- examine him. Upon such cross-examination also however, things did not change and one after the other, the accused went at odds with the prosecution version. First of all, he did not identify co-accused Mukesh at all. Despite being confronted with his previous version, he vehemently stood ground and failed to identify the co-accused, explaining that he Digitally signed GAURAV by GAURAV SHARMA SHARMA 12:32:00 Date: 2022.06.04 +05'30' FIR No. 405/19 State v Vikram @ Monti & Ors. PS Nabi Karim Page 5 of 13 does not even know his name. The said position of the complainant is clearly intriguing. This is so since he, in his examination-in-chief clearly stated that 2 persons, one being Vikram @ Monti had come to his shop on the day of the incident in question. In such circumstances, the complainant not identifying the co-accused sounds not to be in sync with the version of the State and creates a doubt regarding such basic facts.
10.The underlying theme of the State version for charging the accused persons in having robbing away the mobile of the complainant has been that accused Vikram @ Monti had been, from before, demanding money from him. In his deposition however, the witness categorically denied the suggestion that the accused had threatened him of dire consequences prior to the present complaint also. If that be so, the very assumption based upon which motives have been attributed to the accused persons, especially to accused Vikram @ Monty, for having committed the offence in question gets diluted.
11.The witness went on to undermine the case of the prosecution even further and denied the site plan Ex. PW-1/C having been made in his presence or at his instance, as claimed by the police. He even denied the arrest and personal search memos having been prepared in his presence, which again is in contradistinction with the State version. More importantly, the witness even denied the accused having been arrested in his presence and the robbed mobile phone having been recovered from the possession of the accused Vikram @ Monty from his house. Such variations qua crucial aspects of the State case are extremely detrimental Digitally signed GAURAV by GAURAV SHARMA SHARMA Date: 2022.06.04 12:32:19 +05'30' FIR No. 405/19 State v Vikram @ Monti & Ors. PS Nabi Karim Page 6 of 13 in keeping together the factual scenario, as knitted together by the police. Even more damaging was the admission of the witness that the case property, i.e. the mobile phone in question, was in fact brought to the police station and he did not know who had brought it there. Such version of the witness lies in the teeth of the State case as its version has been that the mobile phone was recovered from the house of the accused Vikram @ Monti. How can both such situations be reconciled is something which has not been explained. As such therefore, the circumstances of the recovery of the case property itself become suspect, enuring to the benefit of the accused persons.
12.As can be seen from the above, the testimony of PW-1/complainant is fraught with inconsistencies and has left a lot loose ends open. Even during the cross-examination of PW-1, the same could not be rectified. The witness reiterated therein also that he was never threatened previously by the accused Vikram @ Monti. He added that when at the police station, several documents were got signed from him and he did not understand their import. Such statement by the witness on oath tells its own story as to how the present case has been stitched up. That is to say, if the complainant himself is deposing against the investigation authorities as to them having obtained his signatures on several papers without his knowledge, then what to say of the manner and the circumstances under which the accused persons must have been framed. This clearly acts to the disadvantage of the case of the prosecution, for which no plausible explanation has been offered.
Digitally signedGAURAV by GAURAV SHARMA SHARMA Date: 2022.06.04 12:32:39 +05'30' FIR No. 405/19 State v Vikram @ Monti & Ors. PS Nabi Karim Page 7 of 13
13.Even more astounding was the admission of the complainant / PW-1 during his cross-examination when he stated, in so many words, that he was in fact not willing to pursue the present matter and it was wrong to suggest that accused Vikram @ Monti had taken away his mobile phone. Such statement of the complainant demolished from its very foundation whatever little merit, if at all any, remained in the case of the prosecution. As against such a clear-cut admission, the prosecution has been totally unable to offer any counter version.
14.Finally, PW-1 also deposed that despite public persons being available at the spot at the time of the incident in question, he did not raise any alarm after the alleged robbery and did not even try and chase the fleeing accused. Such behaviour on part of the witness / complainant sounds perplexing as any normal person, in usual course, would have acted to the contrary. Considering the allegations of robbery which have been levelled, such behaviour on part of the witness does not add up and contributes to the already all-pervasive sense of contradiction the State version inheres in it. Even though the witness stated that he had told about the incident in question to around 2-3 neighbours / shopkeepers later but upon being asked their names, he could not recollect and even admitted that this fact was never told to the IO. The whole thing ends up being a cobweb of conjectures and surmises. This, when taken together with the fact that the witness kept totally mum as to the manner in which robbery was committed by both the accused, leads to one, but only one conclusion, that on the touchstone of establishing the case beyond Digitally signed GAURAV by GAURAV SHARMA SHARMA Date: 2022.06.04 12:33:11 +05'30' FIR No. 405/19 State v Vikram @ Monti & Ors. PS Nabi Karim Page 8 of 13 reasonable doubt, the testimony of PW-1 is found to be entirely unsatisfactory and unreliable.
15.Even the police witnesses subsequently examined, could not undo the damage done by the testimony of the complainant on key and material aspects of the case. PW-2 HC Satbir deposed on similar lines as to the prosecution case. In his cross-examination, all the suggestions put to him qua recovery of the case property, availability of CCTV camera and the documents with regards the case being prepared in the PS itself, were all denied. As to the availability of the public witnesses however, at the place of the incident in question, the witness casually suggested that they were requested to join investigation but nobody agreed. In this regard, the position of law is clear, laid down by superior courts from time to time. In State of Punjab v. Balbir Singh, AIR 1994 SC 1872, the Hon'ble Supreme Court held that:
'It therefore emerges that non-compliance of these provisions i.e. Sections 100 and 165 Cr.P.C. would amount to an irregularity and the effect of the same on the main case depends upon the facts and circumstances of each case. Of course, in such a situation, the court has to consider whether any prejudice has been caused to the accused and also examine the evidence in respect of search in the light of the fact that these provisions have not been complied with and further consider whether the weight of evidence is in any manner affected because of the non-compliance. It is well-settled that the testimony of a witness is not to be doubted or discarded merely on the ground that he happens to be an official but as a rule of caution and Digitally signed GAURAV by GAURAV SHARMA SHARMA 12:33:35 Date: 2022.06.04 +05'30' FIR No. 405/19 State v Vikram @ Monti & Ors. PS Nabi Karim Page 9 of 13 depending upon the circumstances of the case, the courts look for independent corroboration. This again depends on question whether the official has deliberately failed to comply with these provisions or failure was due to lack of time and opportunity to associate some independent witnesses with the search and strictly comply with these provisions.' (emphasis supplied)
16.Given the facts and circumstances of the present case, it is observed that there was no lack of time and opportunity to get associated independent witnesses at the time of the incident ion question to strictly comply with the provisions of Code of Criminal Procedure. Merely mentioning that public persons were requested to join the investigation does not serve any purpose so as to lend any sort of credence to the case of the prosecution. Name of any such persons asked have no-where been mentioned either. It is also not mentioned as to what action was taken, if any, against those persons who refused to join the investigation. In view of the same, the above-mentioned circumstances as to the arrest of the accused from the place of the incident in question, as alleged, becomes suspect.
17.It is therefore seen that the testimony of PW-2 did not as such add anything to the already weak case of the prosecution. Rather, it ended up displaying even more the inherent shortcomings therein.
Digitally signedGAURAV by GAURAV SHARMA SHARMA Date: 2022.06.04 12:33:54 +05'30' FIR No. 405/19 State v Vikram @ Monti & Ors. PS Nabi Karim Page 10 of 13
18.PW-3 Ct. Sunil was examined next and he again reiterated the State version. In his cross-examination, he denied the suggestions put to him that he never visited the place of incident in question and was falsely joined as a witness. It is important to note however that he conceded as to non-joining / non-examination of any public persons by the IO in his presence. The same bolsters the case of the accused as to the case property being planted upon the accused persons.
19.PW-4 HC Rakesh Kumar also deposed in line with the prosecution version. His testimony was however formal in nature and did not specifically place any additional incriminatory material on record qua the accused persons.
20.Finally, the IO PW-5 ASI Baent Kumar was examined, who stuck to the police version in his examination in chief. In his cross-examination, he could not however depose as coherently. He conceded that despite there being other houses in the vicinity of the place of incident, no enquiry was conducted from the neighbours / public persons. The doubt that such non-joining of public witnesses creates as to the prosecution case has already been noted above in terms the judgement in Balbir Singh (supra). He also admitted that he did not interrogate / enquire any friend of the complainant, who was told about the incident. As such therefore, the IO himself agreed that he did not verify the claims of the complainant and no cogent explanation was forthcoming for not doing so. Likewise, it Digitally signed GAURAV by GAURAV SHARMA SHARMA Date: 2022.06.04 12:34:14 +05'30' FIR No. 405/19 State v Vikram @ Monti & Ors. PS Nabi Karim Page 11 of 13 is also seen that the police officers concerned did not offer their own personal search first, prior to taking the search of accused Vikram @ Monty as the recovery is claimed to be a planted one. The said police witnesses should have offered their own personal search prior in time to some independent witness. However, no such precaution is seen to have been taken. That again, creates doubt as to false planting of the case property upon the person of the accused Vikram @ Monty and it indeed cannot be ruled out.
21.In view of the testimonies of the witnesses as above, it is ostensibly clear that there are glaring gaps, walkways at that, in the version of the prosecution which have not been explained to the satisfaction of the Court at all. Also, the entire depositions of all the witnesses, of whatever its worth, are qua accused Vikram @ Monti only and nothing concrete has come on record qua co-accused Mukesh, apart from the cursory mention of his name at sporadic places. For an offence as grave as robbery, if that is the level of evidence collected and adduced, it shows poorly on the manner of investigation. It seems that the co-accused Mukesh has been roped in for the sake of it to somewhat substantiate the allegations made. Even as regards accused Vikram @ Monti, neither the incident in question has been proved, nor the recovery in view of the intrinsic weaknesses in the testimonies of the witnesses. The present case is a classic example of the rot that permeates within the police investigation system, of which sadly, the unsuspecting citizen becomes the casualty.
Digitally signedGAURAV by GAURAV SHARMA SHARMA Date: 2022.06.04 12:34:34 +05'30' FIR No. 405/19 State v Vikram @ Monti & Ors. PS Nabi Karim Page 12 of 13
22.All in all therefore, as has been discussed above, it is seen that the prosecution has failed to prove the guilt of the accused persons beyond reasonable doubt. It has failed to dispel the myriad nature of doubts that have arisen during the examination of witnesses as to the manner and circumstances under which the subject offence was committed and the predicate recovery, as alleged, was made. Accordingly, accused persons Vikram @ Monti and Mukesh are hereby Acquitted of tall he charges framed against them. File be consigned to Record Room after due compliance.
Digitally signed Announced in the Open Court GAURAV by GAURAV
SHARMA
on 04.06.2022 SHARMA Date: 2022.06.04
12:35:03 +05'30'
(GAURAV SHARMA)
Metropolitan Magistrate-05
Central District
Tis Hazari Courts
Delhi
Judge Code : DL00855
FIR No. 405/19 State v Vikram @ Monti & Ors. PS Nabi Karim Page 13 of 13